A dispute over the will of a recently-deceased actress and TV personality has put a spotlight on how to avoid such rows in the first place.

A case featuring a celebrity shines a light on the kind of disputes that can occur over wills. This is a pertinent issue for high net worth individuals, whose estates are worth considerable sums. Here, Andrew O’Keefe, partner in the private client team at law firm Wedlake Bell, discusses the issues in this recent case. This publication is pleased to share these views and invites responses.

It was recently revealed that the two sons of Lynda Bellingham, the British actress best known for the Oxo television adverts in the 1980s and 1990s, are seeking to challenge her will after she left the majority of her estate to her third husband. The case highlights the importance of careful drafting of wills allied to an awareness of the ability for family members to mount a challenge if the will does not make reasonable provision for them.

Lynda Bellingham died from cancer in October 2014, leaving two adult sons and her third husband, Michael Pattemore. Her sons have reported that the will leaves small gifts to each of them with the majority of the estate passing to Mr Pattemore, but that Ms Bellingham's wish was that Mr Pattemore would pass the estate on to them later. The sons have reportedly received gifts worth £750 each but no evidence that anything further will be forthcoming.

Unfortunately for the sons, if Ms Bellingham’s will left everything to Mr Pattemore outright, he is entitled to do with it what he pleases. Any wishes Ms Bellingham may have expressed to Mr Pattemore to “do the right thing” by her sons are not legally binding.

However, under the Inheritance (Provision for Family and Dependants) Act 1975 (the 1975 Act), certain categories of claimant can apply to the court for a share of a deceased’s estate if the will (or intestacy rules) does not make “reasonable financial provision”. Children of the deceased are one such potential claimant, as is the spouse/civil partner, anyone maintained by the deceased and, in some situations, a cohabitant. A child is entitled to such financial provision as it would be reasonable for his or her maintenance, but the meaning of "maintenance" will differ from case to case and the inclination of the courts to make awards to adult children who are able-bodied and capable of earning a living can be limited. Ms Bellingham's sons will need to consider this before embarking on any claim.

The 2015 case of Illot v Mitson is one example of a successful 1975 Act claim. The deceased had excluded her only daughter, Heather Ilott, from her will in favour of charities. Ms Ilott challenged the will under the 1975 Act and was eventually awarded (by the Court of Appeal) one-third of the estate (£164,000). The decision has been used to illustrate the vulnerability of one's will if it excludes family members. However, there were multiple factors leading to Ms Ilott's success which will not necessarily be present in the majority of cases; Ms Ilott was on state benefits for instance and her level of need for financial provision was high; additionally, the deceased seemingly had little connection with the charities that she named. It was announced in March 2016 that the charities have been granted leave to appeal the decision, and the outcome will be keenly awaited.

Far better, of course, to avoid getting into litigation over the provisions of a will in the first place; and if one lesson can be learned from the Bellingham situation, it is to get the format of your will right. If it is true that Ms Bellingham wanted her sons to be provided for but for her husband to be the primary beneficiary, the will should have been set up to achieve that. A will can establish trusts that allow a surviving spouse or civil partner to benefit from the estate during their lifetime, with power for the trustees to make gifts to children during this period with the remainder passing to such children on the spouse or civil partner's death. The use of such trusts is common in second and third marriages, and allows the testator to control who ultimately receives their wealth without needing to rely on family members "doing the right thing". Letters of wishes, whilst not legally binding, are also important in helping a testator explain to family why the will has been written in a particular way and can help avoid later disputes. 

For disappointed beneficiaries, there are other ways in which a will can be challenged. If there is any suspicion that the testator did not have the necessary capacity when they made their will, and Ms Bellingham's sons have alleged that she was on "strong drugs" at the time, a claim for lack of testamentary capacity or lack of knowledge and approval of the contents of the will can be considered. If there is any suspicion that a testator was being persuaded by a third party to write their will in a certain way based on undue influence, a claim may also be a possibility. 

Which route, if any, Ms Bellingham's sons take in this case remains to be seen; but the whole matter begs the question as to whether these problems, and inevitable litigation costs, could be avoided if she had set up her will to safeguard against possible disputes.